Due Process

6000 “DUE PROCESS” STRUCTURES FOR THE ARCHDIOCESE OF SAN FRANCISCO: #

6100 THE COUNCIL OF CONCILIATION, AND THE BOARD OF ARBITRATION. #

6110 INTRODUCTION #

In 1970 the Senate of Priests proposed and the Archbishop established for the Archdiocese of San Francisco a Council of Conciliation and a Board of Arbitration. The composition, purpose and function of these structures are those suggested in the Ad Hoc Committee on Due Process Report of the Canon Law Society of America (1969) pages 13 – 25, amended in part by the Priests’ Senate (included below) and amended also by the Holy Father on October 30, 1971, cfr. Canon Law Digest, vii, pp. 899-900). These structures provide a procedure for the resolution of disputes in administrative areas of church governance in which rights of persons are respected and protected.
The principles underlying these structures are expressed in the same report of the Canon Law Society of America:
In accordance with the authentic teaching of the Catholic Church …all persons in the Church are fundamentally equal in regard to their common rights and freedom,
among which are:
The right and freedom to hear the Word of God and to participate in the sacramental and liturgical life of the Church;
The right and freedom to exercise the apostolate and share in the mission of the Church;
The right and freedom to speak and be heard and to receive objective information regarding the pastoral needs and affairs of the Church;
The right to education, to freedom of inquiry and to freedom of expression in the sacred sciences;
The right to free assembly and association in the Church;
And such inviolable and universal rights of the human person as the right to the protection of one’s reputation, to respect of one’s person, to activity in accord with the upright norm of one’s conscience, to protection of privacy.

The dignity of the human person, the principles of fundamental fairness, and the universally applicable presumption of freedom require that no member of the Church arbitrarily be deprived of the exercise of any right of office.
Notion of Due Process
The adequate protection of human rights and freedoms is a matter of concern to all men of good will; the adequate protection of specifically ecclesial rights and freedoms has become a matter of increasing concern to all members of the Church.
Rights are protected in many ways. Indirectly, they are protected by education, growth of moral conscious-ness, development of character; directly, they are protected by law. Rights without legal safeguards, both preventive and by way of effective recourse, are often meaningless. It is the noblest service of law to afford effective safeguards for the protection of rights, and, where rights have been violated, to afford effective means for their prompt restoration.
The need for an effective way of protecting rights in the Church becomes obvious when one considers that the administrative areas within the Church have experienced the fastest rate of growth in recent years. The emergence of personnel boards, liturgical commissions, parish councils and similar bodies has increased the number of persons who exercise some measure of authority at different levels
of the Church’s structure.

6120 CONCILIATION #

The first structure for handling disputes is the process of conciliation. It is the heart of conciliation that
two disputants agree to engage the services of a third person or persons who will seek to bring them to agreement. The conciliator makes no decision, but simply offers assistance in an attempt to reconcile the disputing parties. Conciliation is the most distinctly Christian aspect of these due process structures. Christian notions of forgiveness, peacemaking and charity argue that the primary process for resolving disputes in the Church should involve conciliation of people rather than the assertion of legal rights.
The structure provided for conciliation is called the “Council of Conciliation.” Its composition and function as well as the manner of initiating conciliation and the procedures for such action are described below under the section “Process of Conciliation.”
For a list of the current members of the Council of Conciliation, please refer to “Members of Boards,” Series 8000 of this Handbook.

6130 ARBITRATION #

In most instances, the majority of controversies should be settled through conciliation. However, since this will not always be possible, a structure for arbitration
is provided called the “Board of Arbitration.” This Board is also described below under the section “Process of Arbitration.” Current members are also listed under series 8000 of this Handbook.
Arbitration is defined as the reference of a dispute, by voluntary agreement of the parties, to an impartial person or persons for determination on the basis of evidence and arguments presented by both parties, who agree in advance to accept the decision of the arbitrator as final and binding.

6140 RECOURSE TO CONCILIATION AND ARBITRATION #

Any person in conflict with any other person, group or institution exercising administrative authority in the Archdiocese may have recourse to the Council of Conciliation and the Board of Arbitration.

6150 AREAS OF CONCERN #

6151 These “due process” structures shall be offered:
6151.1 To reconcile disputants or arbitrate disputes between individual members of the Archdiocese or groups within the Archdiocese which concern an ecclesiastical matter;
6151.2 To reconcile disputants or arbitrate disputes between a person and a diocesan administrator or administrative body, where it is contended that the norms on the manner of imposing or declaring administrative and disciplinary sanctions have not been justly and equitably observed;
6151.3 To reconcile disputants or arbitrate disputes between administrative bodies of the Archdiocese which involve conflict of competency.

6152 However, the following shall not be subject to these structures:
6152.1 Criminal cases in the strict sense and administrative sanctions and disciplinary actions;
6152.2 Dissolutions of marriages;
6152.3 Matters pertaining to benefices when there is litigation about the title itself to a benefice unless the legitimate authorities sanction arbitration;
6152.4 Spiritual matters whenever the award requires payment by means of temporal goods.
Disputes involving temporal ecclesiastical goods or those things which, though annexed to the spiritual, can be dealt with apart from their spiritual aspect, may be settled through arbitration, but the formalities of law for the alienation of ecclesiastical property must be observed if the matter is of sufficient importance.

6200 PROCESS FOR CONCILIATION #

6210 ARTICLE I. ESTABLISHMENT #

6211 The Archdiocese of San Francisco shall set up a “Council of Conciliation,” composed as follows:
Two persons appointed by the Ordinary of the Archdiocese;
Two lay persons elected by the Archdiocesan Pastoral Council or in its absence the Senate of Priests;
One person elected by the Senate of Priests. 6212 The term of office shall be three years.
6213 These exceptions shall apply to the initial members of the Council:
The first appointee of the Ordinary shall have a term of three years.
The person receiving the largest vote from the Archdiocesan Pastoral Council shall have a term of two years.
The person elected by the Senate of Priests shall have a term of two years.

The second appointee of the Ordinary shall have a term of one year.
The person receiving the second largest vote from the Archdiocesan Pastoral Council shall have a term of one year.
6214 The Council shall elect its Chairman, Secretary and Treasurer.
6215 The Archdiocese shall reimburse the Council for its expenses upon presentation of a statement signed by the Chairman and Treasurer.
6216 The establishment of the Council, its purposes, the biographies of its members, and its rules of operation shall be announced by a letter from the Ordinary to the clergy and faithful of the Archdiocese and by appropriate publicity in the diocesan and secular press.

6220 ARTICLE II. STARTING THE PROCESS #

6221 Any person in conflict with the Ordinary of the diocese, an appointee of the Ordinary, a priest in the diocese, a Catholics college, hospital, or other charitable or educational institution in the diocese, a parish or a diocesan council,
a parish or diocesan school board, a Catholic cemetery organization or burial association, or any other person, group or institution exercising administrative authority in the diocese, may have recourse to the Council.
6222 A person having recourse to the Council shall be styled the “initiating participant,” and the person, group or institution with whom he is in conflict shall be styled the “convoked participant.” Recourse to the Council shall be styled “the initiative,” and the acceptance of a process for reconciliation by the convoked participant shall be styled “an affirmative response.” The conflict shall be designated as “the problem.”
6223 An initiating participant may take the initiative by sending to any Member of the Council a statement that he has a problem involving one or more of the persons, groups or institutions described in paragraph 6221, and setting forth the gist of the problem.
6224 The Member receiving this statement shall contact the convoked participant both in writing and by telephone, shall apprise him of the problem stated by the initiating participant, and shall inquire if he will accept conciliation. The convoked participant shall be given a description of
the purposes of the Council of Conciliation, the biographies of its members, and a copy of its rules of procedure. He
shall be asked if he would accept as a conciliator the Member addressed by the initiating participant or if he would prefer that the Chairman designate a different Member or Members. He shall be advised that the Council is sup-
posed to proceed with dispatch and that his affirmative response to the initiative is expected within two weeks of the notice to him.
6225 If the convoked participant fails to give an affirmative response, the Member shall refer the matter to the Chairman
who shall endeavor to persuade the convoked participant to give such response.
6226 If, four weeks from the date of the initiative, no affirmative response has been made by the convoked participant, the Member shall refer the matter to the Ordinary who shall endeavor to persuade the convoked participant to give such response.
6227 In the event that the convoked participant is the Ordinary of the diocese himself, the provisions of paragraph 6226 shall not apply, and if, four weeks from the date of the initiative, there is no affirmative response, the Member shall refer the matter to the Chairman of the Bishops’ Committee on Conciliation and Arbitration who, by telephone and letter and, if possible, by personal conference, shall endeavor to persuade the Ordinary to give such response.
6228 In the event that the Member fails to discharge any of his responsibilities for referring the matter to the Ordinary or the Chairman of the Bishops’ Committee, as the case may be, the initiating participant may ask the Chairman of the Council of Conciliation to make the referral; should the Chairman fail to do so, the initiating participant may make the referral himself.

6230 ARTICLE III. THE PROCESS #

6231 The Member addressed by the initiating participant and agreed to by the convoked participant shall act as conciliator in the process. In the event there is no agreement, the Chairman shall designate a Member or Members to act as conciliator or conciliators in the process.
6232 Within three weeks of the affirmative response, the conciliating Member shall meet alone with each participant for oral discussion of the problem.
6233 Within one week of the second of these conferences, the Member shall meet with both participants together and endeavor to guide them to a peaceful resolution of their problem. The Member shall schedule as many of these joint meetings as seem to him to be necessary in order to progress to conciliation.
6234 The Member shall endeavor to assure that each participant answers the questions which the other participant believes are essential if he is to understand the actions of the other.
While the Member should exercise his discretion, he should act in the knowledge that paternalistic concealment of facts is no longer an acceptable mode of behavior to many persons, and he should, therefore, encourage a trust in candor on both sides.
6235 The first joint meeting of the participants and the Member shall be restricted to these persons. Thereafter, in the discretion of the Member, each participant may have with him one or two advisers — theologians, lawyers, friends, or whomever he chooses. In the event that one participant desires to have such advisers, and the Member agrees, the Member shall notify the other participant that he may come with an equal number of advisers. In the discretion of the Member and with the agreement of the participants other Members of the Council of Conciliation or other persons may join the meetings from time to time.
6236 If the problem is resolved by agreement, the Member shall prepare a summary statement of the problem and its resolution, and shall submit it for the approval and signature of the participants. If the problem is unresolved after the meetings
arranged by the Member have been held, and in any event if the problem is unresolved six months from the initiative, the Member shall ask the participants if they are willing to continue discussion of the problem with him, with another Member of the Council, with a person designated by the Ordinary, or, in a case where the Ordinary is participant, with a person designated by the Chairman of the Bishops’ Committee on Conciliation and Arbitration. If the participants agree in their response, the Member shall arrange the desired continuation. If one or more participants declines to engage in
further discussion, the Member shall file a report with the Council and, where the Ordinary is participant, with the Chairman of the Bishops’ Committee on Conciliation and Arbitration. This report shall contain the names of the participants, a summary of the problem and the discussions taken to resolve it, and certification by the Member that, despite the good faith of the participants, no resolution could be reached.
6237 The Member shall have no power to force the participants to adopt a solution. He shall have power, however, to determine that any participant is not cooperating in good faith. Prima facie evidence of lack of good faith will be failure to attend three scheduled meetings, failure to respond to a substantial number of questions which the Member believes appropriate, or failure to suggest any way of accommodating the interests of the other participant. In the event that for these or other reasons the Member believes that a participant is not cooperating in good faith, he shall apprise him of this belief orally and, failing cooperation, shall apprise him again in writing.
If there is no cooperation after the written communication, the Member shall at once notify the Ordinary of the diocese, or, if the Ordinary is a participant, the Chairman of the Bishops’ Committee on Conciliation and Arbitration. The Ordinary or the Chairman shall endeavor to persuade the participant to cooperate.
6238 Meetings shall be private without publicity. All communications made to a Member or between participants shall be treated as confidential by all who share in them. If the problem is resolved by agreement, and the parties agree to publicizing the solution, announcement of it shall be made. If there is no agreement on a solution or on publicizing it, no announcement shall be made.

6300 PROCESS FOR ARBITRATION #

6310 ARTICLE I. ESTABLISHMENT #

6311 The Archdiocese of San Francisco shall set up a “Board of Arbitration.” The Board shall consist of five persons, two of whom shall be appointed by the Ordinary, two lay persons elected by the Archdiocesan Pastoral Council or in its absence, by the Senate of Priests , and one person elected by the Senate of Priests.
6312 The members of the Board of Arbitration shall serve for a term of three years. No member shall have more than two consecutive terms in office.

For the purposes of continuity, the terms of the initial members shall he staggered in the following manner:

• The second appointee of the Ordinary shall have a term of two years.
• The first person elected by the Archdiocesan Pastoral Council shall have a term of three years.
• The second person elected by the Archdiocesan Pastoral Council shall have a term of two years. The person elected by the Senate of Priests shall have a term of one year.

6313 The Board of Arbitration shall select from its own members a Chairman and a Secretary-Treasurer, each of whom shall serve for a term of one year in that respective capacity.
6314 It shall be the responsibility of the Board of Arbitration:
6314.1 to select a sufficient number of qualified persons to be arbitrators;
6314.2 to accept all complaints made to it in writing by any member of the Archdiocese and to determine whether or not the case falls within the competence of the Board;
6314.3 to assist the parties in the selection of an arbitrator;
6314.4 to supervise and administer the over-all program and to interpret rules of procedure to be followed in arbitration when questions are referred to it by either the arbitrators or the parties themselves.

6320 ARTICLE II. SELECTION OF ARBITRATORS #

6321 Arbitrators should be selected for their impartiality and competence.
6321.1 Impartiality. The arbitrator must receive no direct benefit from the outcome of the decision he makes.
The following, therefore, are disqualified to serve as arbitrators:

6321.11 Anyone related by consanguinity or affinity to one or another of the parties, or who is a guardian of one of the parties.
6321.12 Anyone involved with one or another of the parties in such a way as to have a particular interest in the outcome of the dispute.
6321.13 Anyone who can be shown to be inimical to one of the parties.
6321.2 Competence. The arbitrator should have some understanding of how a hearing should be conducted. Expertise in the area under discussion is helpful, but not absolutely necessary. If the arbitrator is not himself an expert, he should feel free to call in experts during the hearing.

6322 Method of Selection in General #

6322.1 It is the responsibility of the Board of Arbitration to select a panel of arbitrators from among the laity, religious, and clergy. It is not necessary that a person be a member of the diocese in order to be included on the panel of arbitrators. It is recommended that there be an exchange of panels between neighboring dioceses where possible.
6322.2 The Board of Arbitration has the responsibility of screening candidates for the panel of arbitrators. The Board shall solicit nominations from any organized group in the diocese, or in any other way to be determined by the Board itself.
6322.3 There shall be maintained a minimum panel of ten arbitrators in order to insure an adequate choice of selection for the parties.

6323 Method of Selection for a Specific Case #

6323.1 If the arbitration agreement applicable to a particular case provides a method of appointment of arbitrators, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails or is unable to act, and no provision has been made for the appointment of his successor, the Board of Arbitration on application of a party shall appoint one or more arbitrators. An arbitrator so appointed has all the powers of one specifically named in the agreement.

6323.2 In the event the arbitration agreement does not provide a method of appointment of arbitrators, the Chairman of the Board of Arbitration shall appoint arbitrators according to the following procedure:
6323.21 The Chairman of the Board of Arbitration shall submit to each party a list of arbitrators, large enough to assure adequate choice.
6323.22 The parties shall strike out those names not acceptable to themselves and list the others in the order of their preference.
6323.23 The Chairman of the Board of Arbitration shall then appoint three arbitrators, following as closely as possible the selection of the parties.
6323.24 The Board of Arbitration shall draft and enforce its own rules with regard to time limits for making the selection, and the consequences of not observing the time limits.

6330 ARTICLE III. PROCEDURE #

6331 Initiation of Arbitration #

The parties shall submit to the Chairman of the Board of Arbitration a written statement setting forth the nature of the dispute and the remedies sought.

6332 Time and Place of Hearing #

The arbitrators shall appoint a time and place for hearings and notify the parties not less than five days before each hearing.

6333 Representation by Counsel #

Parties to the dispute may be represented at hearings by counsel or other authorized representative.

6334 Attendance at Hearings #

Persons having a direct interest in the arbitration are entitled to attend hearings. It shall be in the discretion of the arbitrators to determine the propriety of the attendance of any other person.

6335 Adjournments #

For good cause the arbitrators may adjourn the hearing upon the request of a party or upon their own initiative, and shall adjourn when all the parties agree thereto.

6336 Arbitration in the Absence of a Party #

Arbitration may proceed in the absence of any party who, after due notice, fails to be present or fails to obtain an adjournment.

6337 Evidence #

The arbitrators shall hear and determine the controversy upon the evidence produced. Parties may offer such evidence as they desire and shall produce such additional evidence as the arbitrators may deem necessary to an understanding and determination of the dispute. The arbitrators shall judge the relevancy and materiality of the evidence offered, and conformity to legal rules of evidence shall not be necessary. All evidence shall be taken in the presence of all of the arbitrators and all of the parties except where any of the parties is absent in default or has waived his right to be present. The arbitrators may require the parties to submit books, records, documents, and other evidence.

6338 Evidence by Affidavit #

The arbitrators shall have the power to administer oaths to take evidence from witnesses by deposition whenever witnesses cannot attend the hearing.

6339 Order of Proceedings #

A hearing shall be opened by the recording of the place, time, and date of hearing, the presence of the arbitrators and parties, the presence of counsel, if any, and the receipt by the arbitrators of initial statements setting forth the nature of the dispute and the remedies sought.
The arbitrator may, in his discretion, vary the normal procedure under which the initiating party first presents his claim, but in any case shall afford full and equal opportunity to all parties for presentation of relevant proofs.
The names and addresses of all witnesses, and exhibits offered in evidence, shall be made a part of the record.

6339-1 Majority Decision
In the course of the hearing, all decisions of the arbitrators shall be by a majority vote. The award shall also be made by majority vote unless the concurrence of all is expressly required by the terms of a particular arbitration agreement.

6339-2 Closing of Hearings
The arbitrators shall inquire of all parties whether they have any further proofs to offer or witnesses to be heard. Upon receiving negative replies, the arbitrator shall declare the hearings closed. The hearings may be re-opened by the arbitrators on their own motion, or on the motion of either party, for good cause shown, at any time before the award is made.

6339-3 Time of Award
The award shall be rendered promptly by the arbitrators and, unless otherwise agreed by the parties, not later than thirty days from the date of closing the hearings, or if oral hearings have been waived, then from the date of transmitting the final statements and proofs to the arbitrator.

6339-4 Form of Award
The award shall be in writing and shall be signed by the arbitrators.

6339-5 Stenographic Record
Provision for recording the entire proceedings may be made at the request of either party, or at the discretion of the arbitrators. The total cost of such a record shall be shared equally among parties ordering copies, unless the parties agree otherwise.

6339-6 Interpretation and Application of Rules
Questions concerning the interpretation of these rules shall be referred to the Board of Arbitration for final decision.

6340 ARTICLE IV. COMPETENCE #

6341 The Process for Arbitration shall extend:
6341.1 To all disputes between individual members of the Church, or groups within the Church, where the controversy concerns an ecclesiastical matter;
6341.2 To all disputes between a person and a diocesan administrator or administrative body, where it is contended that the norms on the manner of imposing or declaring administrative and disciplinary sanctions have not been justly and equitably observed;
6341.3 To all disputes between administrative bodies of the diocese when the dispute involves conflict of competency.
6342 The following, however, shall not be subject to settlement by arbitration:
6342.1 Criminal cases in the strict sense;
6342.2 Administrative sanctions and disciplinary actions; 6342.3 Dissolution of marriages;
6342.4 Matters pertaining to benefices when there is litigation about the title itself to a benefice unless the legitimate authorities sanction arbitration.
6342.5 Spiritual matters whenever the award requires payment by means of temporal goods.
6343 Disputes involving temporal ecclesiastical goods or those things which, though annexed to the spiritual, can be dealt with apart from their spiritual aspect, may be settled through arbitration, but the formalities of law for the alienation of ecclesiastical property must be observed if the matter is of sufficient importance.

6350 ARTICLE V. EXPENSES #

6351 All members of the Board of Arbitration, as well as all arbitrators shall serve gratis. The parties involved in the arbitration, however, shall be assessed a fee in an amount to be determined by the Board of Arbitration to cover Board expenses.

6352 The expenses of witnesses shall be paid by the respective parties producing witnesses. Traveling and other expenses of the arbitrators, and the expenses of any witnesses or the cost of any proofs produced at the direct request of the arbitrators, shall be borne equally by the parties unless they agree otherwise, or unless the arbitrator in his award assesses such expenses or any part thereof against any specified party or parties.

6360 ARTICLE VI. COURT OF ARBITRATION #

6361 There shall be established in this diocese a Court of Arbitration. This Court will function as a board of review. It will not review the merits of the case as such, but rather its purpose will be to hear and render decisions on complaints of nullity or requests for corrections or modifications of the award.
If the tribunal already exists in a particular diocese, this tribunal will perform the function of the Court of Arbitration. A special Turnus of judges shall be assigned to handle matters of this nature.
6362 The Court of Arbitration shall be competent to review an arbitration award where it is alleged that:
6362.1 The award was procured by corruption, fraud, or other undue means;
6362.2 There was evident partiality on the part of an arbitrator; 6362.3 The arbitrators exceeded their powers;
6362.4 The arbitrators refused to postpone a hearing notwithstanding the showing of sufficient cause for such postponement, or refused to hear evidence material to the controversy, or otherwise conducted the hearing so as prejudicially to affect a substantial right of one of the parties;
6362.5 The method of selection of arbitrators, agreed upon by the parties beforehand, was not followed;
6362.6 The decision was based on documents which are spurious;
6362.7 New evidence has been discovered of a character which demands a contrary decision;
6362.8 Principles of fundamental procedural fairness were violated.

6363 Where the Court of Arbitration decides in favor of the nullity of an arbitration award, the Court can order a rehearing either before the arbitrators who made the award or before entirely new arbitrators chosen in the same manner as the original arbitrators.
Where an application to vacate an award or nullify a decision is denied, the Court of Arbitration shall confirm the award.
6364 Correction or Modification of the Award
Where it is alleged that there was a material error in transcribing the award, in relating the petitions of the parties or the facts, in describing any person, thing, or property referred to in the award, in making calculations or in matters of form not affecting the merits of the controversy, corrections may be made by the arbitrators them-selves upon petition of the party, unless the other party opposes such corrections. In the latter event the matter shall be referred to the Court of Arbitration for decision and, where appropriate, for correction or modification of the Award.

6370 ARTICLE VII. FORM OF AGREEMENT #

In individual instances of submission of disputes to arbitration it is advisable for the parties to sign a specific agreement, either by way of modification of a general arbitration agreement or in the absence of such a general agreement, covering such matters as the number of arbitrators, the method of their selection, and, where no general arbitration agreement exists between the parties, the voluntary commitment to accept the decision of the arbitrator(s) as final and binding.
Even in those cases where arbitration is consequent upon a prior agreement, it is desirable that, at the time of the initiation of arbitration, both parties sign a specific agreement of this nature. A sample of such an agreement might read:
“We, the undersigned parties, hereby agree to submit to arbitration under the rules of the Board of Arbitration, the following controversy: (Cite briefly). We further agree that the above controversy be submitted to (1) (3) arbitrators, selected from the panel of arbitrators submitter by the Board of Arbitration. We further agree that we will faithfully observe this agreement and the rules, and that we will abide by and perform any award rendered by the arbitrators.”